IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

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1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA WILLIAM MCCABE, : CIVIL ACTION : Plaintiff, : : v. : : PRISON HEALTH SERVICES, : NO et. al : : Defendants. : MEMORANDUM AND ORDER Anita B. Brody, J. November, 1997 Plaintiff William McCabe ( McCabe ), a prisoner in the State Correctional Institution at Cresson, filed this action, pursuant to 42 U.S.C. 1983, on December 2, 1994 against Joseph D. Lehman, Commissioner of Corrections for the Commonwealth of Pennsylvania; the Pennsylvania Department of Corrections; John and Jane Doe Officers and Guards; and John and Jane Doe Medical Providers. McCabe alleged these defendants were deliberately indifferent to his medical needs in violation of the Eighth Amendment s prohibition against cruel and unusual punishment. He also brought state law claims for negligence and gross negligence. Plaintiff has since twice amended his Complaint, substituting for the original named defendants various medical providers and medical records personnel affiliated with Delaware County, Graterford and Cresson prisons, namely: Prison Health 1

2 Services, Inc.; Correctional Physician Service, Inc.; Executive Health Group National Health Services; Dr. Robert J. DiGiovanni; Dr. Pierce; Dr. Umar (incorrectly identified by plaintiff in his Complaint as Omar); Dr. Rahman; Dr. J. Ennis; Dr. Lewis Brandt; Dr. Anton Skerl; Dr. R. Samuel Magee; Dr. Charles J. Harvey; Altoona Hospital; Sandy Spence; Diane Harris; Betsy Cramer; Kim Christie; Linda Rensimer; and Chris Alvanitakis (incorrectly identified by plaintiff in his Complaint as Alvanitalis). 1 Before me for disposition are motions for summary judgment filed by defendant Alvanitakis individually, defendants Harris, Cramer, and Spence jointly, and a motion for summary judgment filed on behalf of all nineteen defendants. After granting every justifiable inference to Plaintiff, the non-moving party, I will grant the motions for summary judgment as to certain defendants, and deny them as to other defendants. I. BACKGROUND Plaintiff McCabe challenges the persistent failure of the defendants to attend to his medical needs during his 1 Although plaintiff identifies Prison Health Services, Correctional Physicians Service, Inc., and Executive Health Group as defendants in his Second Amended Complaint, he fails to name them in any specific count or to allege any facts against them. It is unclear what plaintiff intended; however, given the lack of any genuine issue of material fact as to these defendants, I shall grant summary judgment as to these defendants on all claims against them. 2

3 incarceration, first at Delaware County Prison, and thereafter at SCI-Graterford and SCI-Cresson. 2 McCabe suffered severe pain in his left leg from 1990 to During this time, McCabe sought medical aid from medical providers at all three facilities without success. He repeatedly requested a surgery that had been recommended for his leg, to no avail. McCabe s leg pain did not cease until doctors amputated his leg in However, his suffering continues, due to the inadequate prosthesis provided by the doctors at SCI-Cresson. Around June 1990, while incarcerated at Delaware County Prison, McCabe felt extreme pain in his left calf. He complained to defendant Dr. Pierce, a private physician who was working under contract with Delaware County Prison (Second Amended Complaint 24-25). Dr. Pierce prescribed anti-coagulant drugs for McCabe s leg pain (Plaintiff s Amended Supplement to Brief in Opposition to Defendants Motion for Summary Judgment, hereinafter Plaintiff s Amended Supplement ). However, McCabe s leg continued to cause him severe pain and he returned to Dr. Pierce seeking further aid (Plaintiff s Amended Supplement). In August 1990, Dr. Pierce referred McCabe to Sacred Heart Hospital for diagnostic tests (Plaintiff s Amended Supplement). An 2 The factual rendition that follows is that most favorable to McCabe, and is drawn from his Second Amended Complaint and Amended Supplement to Brief in Opposition to Defendants Motion for Summary Judgment. 3

4 arteriogram (an x-ray of an artery) showed that McCabe did have clogged arteries in his left leg and abdomen (Second Amended Complaint 26-28). Based on this test result, Dr. Pierce diagnosed McCabe with peripheral vascular disease and claudication of the left leg (Second Amended Complaint 34; Plaintiff s Amended Supplement). According to Dr. Pierce s own brief, this was a serious medical condition. (Brief of Defendant Dr. Pierce in Support of Motion to Dismiss, Docket #44). McCabe s leg pain persisted, and he continued to seek medical aid. In November 1990, Delaware County Prison officials referred McCabe to a vascular specialist for tests. McCabe went to defendant Dr. DiGiovanni, a private physician at Riddle Memorial Hospital (Second Amended Complaint 29-30). Dr. DiGiovanni examined McCabe, and wrote to Dr. Pierce explaining his findings. Dr. DiGiovanni diagnosed McCabe with a 75% Stenosis (blockage) at the origin of the left external iliac and complete occlusion (closure) of the left superficial artery (Plaintiff s Amended Supplement). Dr. DiGiovanni found that there were no indications of imminent limb loss (Second Amended Complaint 31). He recommended that McCabe have elective surgery on his left leg (Second Amended Complaint 31). Dr. DiGiovanni scheduled this surgery for January 1991 (Second Amended Complaint 31). Delaware County Prison officials declined the surgery 4

5 because of McCabe s imminent transfer to SCI-Graterford (Second Amended Complaint 32). McCabe was not transferred to SCI- Graterford until December 1991, eleven months later. Dr. Pierce also refused to authorize the surgery, and when McCabe asked him why, said you know how the system works (Plaintiff s Amended Supplement). Nonetheless, Dr. Pierce repeatedly noted in McCabe s medical records that McCabe suffered from severe peripheral vascular disease (Second Amended Complaint 34). When McCabe was transferred to SCI-Graterford, in December 1991, his county prison medical records remained at Delaware County Prison, in accordance with the medical records regulations then in effect (Plaintiff s Amended Supplement). 3 The only medical information transmitted to SCI-Graterford was in the temporary transfer sheet, which notes, C/o intermittent claudication in R/T PVD -- vascular surgery consultation revealed need for surgery as elective only 11/90 -- Tx Medically c Trental (Motion of Commonwealth Defendants Harris, Spence, and Cramer for Summary Judgment (Docket # 128), Exhibit D1--DC-7x Temporary Transfer Information). McCabe s leg pain persisted and worsened while he was at SCI-Graterford (Second Amended Complaint 35). On numerous occasions, McCabe visited the dispensary, seeking aid for his leg 3 See Motion of Commonwealth Defendants Harris, Spence, and Cramer for Summary Judgment (Docket # 128), Exhibit D14-DOC Medical Records Policy). 5

6 pain (Plaintiff s Amended Supplement). His medical records reflect that he complained about leg pain during his first month at Graterford, in January Again in March 1992, he complained about pain in his left foot. Then, in May 1992, his medical records state that he had diminished dorsal pedic and posterior taken pulse left leg. In July 1992, he again complained about his left leg. Over and over again, McCabe complained to medical providers of his leg pain and of the increasing difficulty he was experiencing in walking. The doctors from whom McCabe sought aid include defendants Drs. Umar, Rahman, Ennis, and Brandt, all of whom were medical care providers under contract with SCI-Graterford (Plaintiff s Amended Supplement). McCabe repeatedly asked Drs. Umar, Rahman, Ennis, and Brandt for the surgery on his left leg which had been recommended by Dr. DiGiovanni (Second Amended Complaint 35). At one point, Dr. Umar denied plaintiff the surgery because the prison was not Burger King, and he [Mr. McCabe] could not have it his way. (Second Amended Complaint 36). While at Graterford, despite his repeated complaints of pain, and frequent requests for medical aid, no diagnostic studies or surgeries were performed on McCabe (Plaintiff s Amended Supplement). In October 1992, McCabe was cleared for transfer to another prison, but his transfer was delayed until April 1993, when he was transferred to SCI-Cresson (Second Amended Complaint 41). 6

7 McCabe did not seek care from October 1992 to April 1993, while he was awaiting transfer, because he was concerned that should he do so, his transfer would be delayed (Plaintiff s Amended Supplement). When McCabe arrived at SCI-Cresson in April 1993, his medical condition was reviewed by medical staff. McCabe informed them that Drs. Pierce and Giovanni had diagnosed him with blocked arteries and recommended that he have surgery on his left leg (Plaintiff s Amended Supplement). McCabe s SCI-Cresson medical records reveal that he made frequent visits to the infirmary seeking aid for his leg pain and that he explicitly requested surgery (e.g., medical records dated 4/30/93; 5/04/93; 6/14/93; 6/15/93; 7/08/93; 7/14/93; 9/16/93; 9/21/93; 10/18/93; 10/25/93; 11/18/93; 12/16/93). From March 1993 to February 1994, McCabe also wrote many letters to defendant Dr. Skerl, the Medical Director of SCI-Cresson, asking for help for his unbearable leg pain (Plaintiff s Amended Supplement). On May 4, 1993, during one of McCabe s visits to the infirmary, Dr. Skerl noted on McCabe s chart, please get old medical records regarding prior arteriogram. When Dr. Skerl saw McCabe again, he wrote on the dispensary record, I need his old records, Not ordered yet. Dr. Skerl subsequently made several further notations about awaiting old records. The arteriogram record, confirming McCabe s condition, was finally received on November 18,

8 In December 1993, McCabe began experiencing serious heart problems, for which he was prescribed nitro-glycerine pills (Plaintiff s Amended Supplement). In January 1994, Dr. Skerl referred McCabe to defendant Altoona Hospital for tests on his heart (Plaintiff s Amended Supplement). On February 8, 1994, while at Altoona Hospital for stress tests on his heart, McCabe experienced tremendous pain in his left leg (Second Amended Complaint 45-46). That same day, McCabe was admitted for emergency quadruple coronary bypass surgery (Plaintiff s Amended Supplement). When he awoke from surgery, McCabe discovered a suture running from his left ankle up to his groin, indicating that a vein from his left leg had been used in his heart surgery (Plaintiff s Amended Supplement). While McCabe was recovering from his surgery, defendant Dr. Magee, a private physician affiliated with Altoona Hospital, diagnosed McCabe with a completely occluded left external iliac artery and a completely occluded left superficial femoral artery (the same diagnosis made over three years before by Dr. DiGiovanni) (Second Amended Complaint 49-50). Dr. Magee recommended that McCabe wait to have surgery on his left leg until he had recovered from his heart surgery (Second Amended Complaint 49-50). McCabe then returned to SCI-Cresson. On February 22, 1994, McCabe s left leg became completely numb, swollen, and discolored (Plaintiff s Amended Supplement). 8

9 He was diagnosed with gangrene and his left leg was amputated below the knee (Plaintiff s Amended Supplement). The remaining portion of his left leg was also gangrenous and subsequently had to be removed (Plaintiff s Amended Supplement). 4 Finally, following the amputations, Dr. Skerl refused to authorize a prosthesis. Dr. Skerl finally gave McCabe a prosthesis, but McCabe continues to experience distress and suffering when walking, because of the poor fit of the prosthesis (Plaintiff s Amended Supplement). II. DISCUSSION The defendants seek summary judgment as a group on the ground that without an expert witness McCabe cannot establish a prima facie case for any of his federal or state claims. The motions filed by Alvanitakis, Harris, Spence, and Cramer further seek summary judgment based on the ground that Mr. McCabe has failed to allege any specific connections between these defendants and his injuries, and, therefore, has raised no 4 McCabe does not have expert medical testimony to prove the causal connections between the defendants alleged earlier deliberate indifference to his severe leg pain and the amputations of his leg. As I discuss more fully in my analysis of his 1983 claims below, without such evidence, McCabe will not be able to recover damages for his amputations. However, the absence of expert evidence on the amputations will not prevent McCabe from showing that the defendants were deliberately indifferent to his pain for three or four years before his amputations, and continue to be indifferent to his medical needs following his amputations. 9

10 genuine issue of material fact as to them. In opposing the defendants motions, McCabe claims that there are disputed issues of material fact as to the defendants deliberate indifference and negligence. A. SUMMARY JUDGMENT STANDARD Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, (1986). The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. When the moving party does not bear the burden of persuasion at trial, as is the case here, its burden "may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to 10

11 support the nonmoving party's case." Id. at 325. Once the moving party has filed a properly supported motion, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party "may not rest upon the mere allegations or denials of the [nonmoving] party's pleading," id., but must support its response with affidavits, depositions, answers to interrogatories, or admissions on file. 5 See Celotex, 477 U.S. at 324; Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). 5 In pro se cases, I ordinarily construe a plaintiff s pleadings as affidavits for purposes of summary judgment motions. See Reese v. Sparks, 760 F.2d 64, 67 n. 3 (3d Cir. 1985) (treating verified complaint of a prisoner acting pro se as an affidavit). This case presents an unusual situation, in that plaintiff was originally represented by counsel, but is now pro se. When McCabe filed his complaints, and through the middle of the discovery period, he was represented by counsel. His counsel filed a motion to withdraw as counsel on November 15, 1996, because of conflicts arising out of strategic decisions in the case. I initially denied his counsel s motion to withdraw, and stayed proceedings until February 14, 1997 to afford McCabe the opportunity to secure another attorney to represent him. McCabe was unable to do so on his own, and I was unable to do so on his behalf. On June 20, 1997, I granted counsel s motion to withdraw. McCabe is now proceeding pro se, and has filed his response to defendants summary judgment motions without the assistance of counsel. Given this hybrid posture, I issued a Notice on October 10, 1997, instructing plaintiff to restate his claims in affidavit form and affirm the truth of his factual assertions. Upon reexamination of the pleadings, given that plaintiff restates the bulk of his factual assertions in his pro se response to the defendants summary judgment motions, I have decided not to require the plaintiff to submit new affidavits. I shall construe his pleadings as affidavits for purposes of this decision. 11

12 To determine whether summary judgment is appropriate, I must determine whether any genuine issue of material fact exists. An issue is "material" only if the dispute "might affect the outcome of the suit under the governing law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence favoring the nonmoving party is "merely colorable," "not significantly probative," or amounts to only a "scintilla," summary judgment may be granted. See id. at , 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) ("When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." (footnote omitted)). Of course, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 255; see also Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Moreover, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255; see also Big Apple BMW, 974 F.2d at Thus, my inquiry at the summary judgment stage is only the "threshold inquiry of determining whether there is the need for a 12

13 trial," that is, "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at B CLAIMS To establish a valid claim under 42 U.S.C. 1983, the plaintiff must establish by a preponderance of the evidence that the conduct of which he complains was committed by one acting under color of state law and that it deprived him of rights, privileges, or immunities guaranteed by the Constitution. See Parratt v. Taylor, 451 U.S. 527, 535 (1981); Piecknick v. Pennsylvania, 36 F.3d 1250, (3d Cir. 1994); Carter v. City of Phila., 989 F.2d 117, 119 (3d Cir. 1993). The plaintiff here claims that a panoply of state actors (defendants Pierce, Skerl, Umar, Rahman, Ennis, Brandt, Spence, Harris, Cramer, Christie, Rensimer, and Alvanitakis) deprived him of his Eighth Amendment right to be free from cruel and unusual punishment by exhibiting deliberate indifference to his serious medical needs. 6 6 I will focus on the alleged deprivation of plaintiff s rights, as defendants do not contest that they acted under color of state law. The only defendant who has raised this issue during the course of the litigation is Dr. Skerl. In his motion to dismiss, Skerl argued that the plaintiff did not allege sufficient facts demonstrating that Skerl was acting under color of state law at the time of the complained of conduct. In my Order and 13

14 1. Standard for Deliberate Indifference In order to substantiate his 1983 claim, plaintiff must demonstrate that each defendant exhibited "deliberate indifference" in violation of his constitutional rights. The Supreme Court identified the basic standard for a deliberate indifference claim in Estelle v. Gamble, 429 U.S. 97, (1976): "In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." For conduct to rise to the level of deliberate indifference, plaintiff must demonstrate "an unnecessary and wanton infliction of pain" which is "repugnant to the conscience of mankind" and "offend[s] evolving standards of decency." Id. Plaintiff can satisfy this standard by demonstrating both that (1) plaintiff had a serious medical need, and also that (2) the defendant was aware of this need and was deliberately indifferent to it. See Farmer v. Brennan, 511 U.S. 825 (1994); Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979); see also Wilson v. Seiter, 501 U.S. 294, , (1991). Explanation of March 26, 1996, denying Skerl s motion to dismiss, I noted, inter alia, that Skerl, by his own admission, was acting as Medical Director of S.C.I.-Cresson, a state prison, when he treated McCabe. I, therefore, determined that Skerl acted under color of state law for purposes of McCabe s 1983 action. See also West v. Atkins, 487 U.S. 42, 51 (1988) (physician under contract with state to provide medical services to inmates at state prison acted under color of state law, within meaning of 1983, when he treated inmate). 14

15 As to the first element, under the Constitution, prison officials must provide care only for serious medical needs. Estelle, 429 U.S. at 104. The Third Circuit defines a medical need as serious if it is one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor s attention. Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F. 2d 326, 347 (3d Cir. 1987); Pace v. Fauver, 479 F. Supp. 456, 458 (D.N.J. 1979), aff d, 649 F.2d 860 (3d Cir. 1981). The fact that a surgery is elective does not abrogate the prison s duty, or power, to promptly provide necessary medical treatment for prisoners. Johnson v. Bowers, 884 F.2d 1053, 1056 (8th Cir. 1989); see also Hathaway v. Coughlin, 37 F.3d 63, (2d Cir. 1994)(upholding a jury verdict on Eighth Amendment claim in favor of plaintiff where defendants delayed plaintiff s elective hip surgery for two years). The seriousness of an inmate s medical need may also be determined by reference to the effect of denying the particular treatment. See Monmouth County, 834 F.2d at 347. For instance, Estelle makes clear that if unnecessary and wanton infliction of pain, results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the Eighth Amendment. 429 U.S. at 103, 105. The Supreme Court has held that the level of culpability 15

16 entailed by the second element, deliberate indifference, falls somewhere between mere negligence (carelessness) and actual malice (intent to cause harm). Farmer, 511 U.S. at (holding that a prison official can be found reckless or deliberately indifferent if the official knows of and disregards an excessive risk to inmate health or safety... ). See also Young v. Quinlan, 960 F.2d 351, (3d Cir. 1992) (holding that a prison official is deliberately indifferent when he knows or should have known of a sufficiently serious danger to an inmate ). In the context of claims arising under the Eighth Amendment, courts have said that state of mind is typically not a proper issue for resolution on summary judgment. See, e.g., Wilson v. Seiter, 893 F.2d 861, 866 (6th Cir. 1990), vacated on other grounds, 501 U.S. 294 (1991). In evaluating claims of deliberate indifference, courts have distinguished between denial of medical treatment, like that alleged here, and inadequate medical treatment. Mere disagreement as to the proper medical treatment does not support a claim of an Eighth Amendment violation; courts will defer to medical judgments of the propriety of treatment. 7 See Monmouth 7 Note that evidence of medical malpractice is not enough to substantiate a claim of "deliberate indifference". See Estelle, 429 U.S. at (medical malpractice is insufficient basis upon which to establish an Eighth amendment violation); Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (negligent medical treatment is not actionable under 8th amendment); Unterberg v. Correctional Medical Systems, Inc.,

17 County, 834 F.2d at 346 (citing Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)). On the other hand, the denial of medical treatment requested by an inmate states a cause of action under The Third Circuit has stated that where prison authorities deny reasonable requests for medical treatment, and such denial exposes the inmate to undue suffering or the threat of tangible residual injury, deliberate indifference is manifest. Monmouth County, 834 F.2d at 346 (citing Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976). Furthermore, short of total denial, if necessary medical treatment is delayed for non-medical reasons, a case of deliberate indifference has been made out. Id. at (citing Ancata v. Prison Health Servs., 769 F.2d 700, 704 (11th Cir. 1985) ( if necessary medical treatment [i]s... delayed for non-medical reasons, a case of deliberate indifference has been made out. ). See also Hathaway, 37 F.3d at 66 (holding that a two year delay in arranging necessary surgery could support a finding of deliberate indifference); Douglas v. Hill, 1996 WL , *8 (E.D. Pa. 1996) (denying defendants motions for summary judgment where medical personnel failed to authorize recommended hernia surgery, despite awareness of plaintiff s complaints of pain). Although an isolated failure to treat, without more, is F. Supp. 490, 497 (E.D. Pa. 1992) (medical malpractice is not deliberate indifference). 17

18 ordinarily not actionable, it may in fact rise to the level of a constitutional violation if the surrounding circumstances suggest a degree of deliberateness, rather than inadvertence, in the failure to render meaningful treatment. Gill v. Mooney, 824 F.2d 182, 196 (2d Cir. 1987). For example, offensive and outrageous acts serve as proof of deliberate indifference. See e.g., Rhodes v. Chapman, 452 U.S. 337, 346 (1981); Estelle, 429 U.S. at Expert Testimony The defendants in the case before me base their joint motion for summary judgment on the 1983 claims on the ground that without an expert witness to testify on his behalf McCabe cannot present a prima facie case of deliberate indifference. However, they cite no legal authority mandating the conclusion that a plaintiff must present expert testimony in order to withstand a motion for summary judgment (or, indeed, to prevail at trial) in an Eighth Amendment deliberate indifference case. 8 In fact, 8 The defendants, in their Joint Summary Judgment Motion, assert [t]estimony as to the standard of care is also necessary to the federal claims, which require not only medical negligence but also showing of deliberate or reckless disregard for the patient s condition. After this proposition, they cite two cases, United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d Cir. 1969), cert. denied, 396 U.S (1970), and Mitchell v. Hendricks, 431 Supp (E.D. Pa. 1977), neither of which mention expert testimony. Defendants presume that plaintiff must prove medical negligence in order to prove deliberate indifference. This is not the case, where, as here, a plaintiff does not claim improper diagnosis, but a total lack of care. 18

19 there is no general requirement in the Third Circuit that a plaintiff present expert testimony in Eighth Amendment deliberate indifference cases. 9 See Rizzolo v. Rivas (in dismissing a defendant doctor s motion for summary judgment on a 1983 claim alleging deliberate indifference to a plaintiff prisoner s medical needs, the court expressly said [t]here is no I received varying arguments in response to my Notice of October 10, 1997 inviting supplemental submissions on the issue of whether a plaintiff must present expert testimony in order to withstand summary judgment on an Eighth Amendment deliberate indifference claim. For example, defendants Harris, Spence, and Cramer state that they are not aware of any general requirement of expert testimony in such cases. On the other hand, defendants Correctional Physicians Service, Inc, Umar, Rahman, Ennis, and Brandt assert that the law requires an expert in order to proceed, but cite no supporting cases for this proposition. Defendant Skerl presents the most potentially persuasive argument, that McCabe will need expert medical testimony at trial in order to show that the denial of surgery caused his amputations. This may well be so, however it goes to the extent of damages, not to determining the defendants indifference to McCabe s serious medical need. McCabe alleges not only that his leg had to be amputated, but also that plaintiffs denied him surgery in the face of nearly four years of chronic and substantial pain, and refused him an adequate prosthesis following his amputations. At trial, McCabe will not be able to obtain damages for the amputations if he cannot show causation. However, he does not need an expert to argue that his Eighth Amendment rights were violated when he was diagnosed with a serious medical condition (peripheral vascular disease) and suffered severe pain for almost four years, yet was denied medical treatment. Deliberate indifference to this prolonged and severe pain is itself sufficient for an award of damages. 9 Nor is there such a requirement in any other Circuit, so far as I can tell. See Ledford v. Sullivan, 105 F.3d 354, (7th Cir. 1997)(holding that an expert is not essential to establishing deliberate indifference, analyzing whether other circuits have found an expert to be necessary to prove deliberate indifference, and concluding that they have not). 19

20 requirement that plaintiff proceed with a medical expert to establish his alleged constitutional claim. ) 1998 WL (D.N.J. 1988), aff d, 891 F.2d 283 (3d Cir. 1989). 10 In certain circumstances, courts do require expert testimony in deliberate indifference cases on the first element, the severity of the medical need, namely, if a jury would not able to decide whether a plaintiff s medical condition is serious enough to implicate the Eighth Amendment. Boring v. Kozakiewicz, 833 F.2d 468, (3d Cir. 1987); see also Shoop v. Dauphin County, 766 F. Supp. 1327, (M.D. Pa. 1991), aff d, 945 F.2d 396 (3d Cir. 1991). Here, McCabe need not present an expert witness on the first element because the severity of his medical need was acknowledged by the doctors who initially treated him, 10 See also Ledford, 105 F.3d at (distinguishing deliberate indifference from malpractice: Because the test for deliberate indifference is more closely akin to criminal law than to tort law, the question of whether the prison officials displayed deliberate indifference toward [plaintiff s] serious medical needs did not demand that the jury consider probing, complex questions concerning medical diagnosis and judgment. The test for deliberate indifference is not as involved as that for medical malpractice, an objective inquiry that delves into reasonable standards of medical care. ); Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir. 1994) (holding that the courts of the Second Circuit have never required plaintiffs alleging a denial of adequate medical care in a Section 1983 action to produce expert medical testimony. The inquiry remains whether the treating physician or other prison official was deliberately indifferent to a prisoner s serious medical needs, not whether the doctor s conduct is actionable under state malpractice law. ); Abdush- Shahid v. Coughlin, 933 F. Supp. 168, 181 n.3 (N.D.N.Y. 1996) (finding that a plaintiff claiming serious medical need is not required to present expert medical testimony to support his claims in order to survive summary judgment). 20

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